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Travel update - Summer 2011

The issue of tour operators’ liability for excursions or equipment paid for in resort has been the subject of considerable judicial scrutiny in recent years.

It is common practice for tour operators to arrange a welcome meeting hosted by the local representative at the start of a holiday. Although the tour representative is often paid for local excursions and hire equipment, they are usually undertaken or hired by a local company. However, if something goes wrong during the course of the excursion, or as a consequence of defective equipment purchased in resort, the injured or dissatisfied UK holidaymaker will usually look to pursue a claim against the tour operator in this jurisdiction.

The claimant cannot rely upon the Package Travel Regulations in these circumstances. He must instead persuade the judge that he entered into a contract with the tour operator, running parallel to the main package holiday contract, when he purchased the excursion with the tour operator's local representative. This is because the tour operator is under a duty to exercise reasonable care and skill in the performance of the excursion contract (as per Section 13 of The Suppliers, Goods and Services Act 1982), even if the local company manages the excursion.

It is not possible to properly analyse the judges' conclusions regarding the numerous 'parallel contract' cases within the confines of this article. It is nevertheless worth mentioning that travel agents and tour operators are now more at risk following the tobogganing case of Parker v TUI UK Ltd [2009] EWCA CIV1261 and the skidoo accident case of Moore v Hotel Plan Limited [2010] EWHC 276 (QB). The case of Parker extended a tour operator's potential liability to the consumer in tort, whilst the case of Moore extends contractual liability in respect of excursions which actively involve the local tour rep.

Here are my five top tips to help tour operators reduce the likelihood of a parallel contract claim.

1. Train your tour representatives

Local reps should clearly explain to customers that they are contracting with the local supplier not the tour operator for excursions. Reps should also refrain from mentioning their corporate brand when giving presentations on excursions whenever possible.

2. Watertight terms and conditions

Tour operators must review their terms and conditions, website content and any other literature given to the holidaymaker to ensure it is crystal clear that they are acting as the agent to the excursion contract. In particular, the brochure/website should highlight that, while local reps can assist customers to purchase excursions in resort from local providers, the activities are not actually offered or managed by the tour operator.

3. Avoid recommendations and endorsements

There should be no references which might be construed as recommendations or warranties regarding the local excursion provider's reputation, service levels or safety records. All references to the tour operator or 'we' or 'us' should be avoided when mentioning the services offered as part of the excursions.

4. Provide documents with local suppliers’ logos

Provide documents at the time of purchase of the excursion which include the logo/design or brand of the local supplier and their contact details. Any tickets for the excursion should also include the local supplier's logo and make it clear that any payments received by the tour operator are taken on behalf of the local company and that the services are contracted between the customer and the provider.

5. Avoid participation in excursions

Reps should refrain from offering assistance to excursion providers or from taking part in activities offered to holidaymakers whenever possible. Written instructions should be handed to reps for each excursion so that they understand the scope of their responsibility and the potential risks to the business if they become too involved in the excursion.

In summary, tour operators must do all they can to ensure their customers understand they are entering into a separate contract with the local supplier for the provision of an excursion or the supply of equipment and that their involvement is limited to an agency role. It is therefore vitally important that all tour operators ensure that their brochures, website and promotional literature exclude any references which might suggest otherwise.

An abridged version of this article appeared in the 16 June issue of the Travel Trade Gazette. Please click here to read the article.

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